What’s New in PA Permitting? Recent Updates Can Impact Any Project In or Near Water or Wetlands

June 5, 2023

In Pennsylvania, Chapters 102 and 105 of Title 25 of the Pennsylvania Code outline practices necessary for any development in or nearby watercourses, floodways, and bodies of water, along with the necessary permits and/or mitigation strategies required to complete the work and alleviate negative impacts to water resources. If your project is in or near a stream or wetland in Pennsylvania, you may need to file for a Chapter 102 or Chapter 105 permit.

The PA Department of Environmental Protection (PADEP) recently outlined updates to Chapter 102 and Chapter 105. Fisher Associates continually monitors changes in the regulatory permitting requirements to facilitate permit issuance for our clients. Here’s what you need to know about the recent developments:

Chapter 102 Updates
In January 2023, the Draft Pennsylvania Post-Construction Stormwater Management (PCSM) Manual was posted for a comment period that concluded April 28. It is expected that the PCSM Manual will be finalized in Spring/Summer 2023. The Draft PCSM Manual contains new interpretive guidance on PCSM regulations and a proposed hierarchy of stormwater management objectives. The Draft PCSM Manual contains new Best Management Practices (BMPs), which will now be referred to by PADEP as Stormwater Control Measures (SCMs), along with new incentives for the protection of natural open spaces and wetlands.

Additionally, coming soon there will be changes to the Erosion Potential Analysis Form that is required under Chapter 102. There will also be slight changes to the public notice requirement process for Chapter 102-regulated projects.

Chapter 105 Updates
PADEP Chapter 105 regulates obstructions to and encroachments on watercourses, floodways, and bodies of water. Its purpose is to regulate for the “protection of safety, welfare, health, property of people; and protect natural resources, environmental rights, and to conserve and protect water quality.” Any activities that include crossing, filling, dredging or encroachment on a stream, wetland or floodway may require a permit under Chapter 105. Chapter 105 has several general permits that your project may fall under, and a permitting hierarchy (see below)) can be utilized to determine if permitting is necessary, and who the regulating body is.

Two of the major changes under Chapter 105 alter or impose restrictions that could impact your development. First, the dates of in-stream restrictions for trout-stocked streams now start earlier in the year. Just like most of the country, Pennsylvania’s late winter/early spring stream temperatures are increasing and, as a result, the Pennsylvania Fish and Boat Commission (PFBC) is stocking streams earlier in the season. The earlier in-stream restriction dates will be specified under project-specific permit conditions until the General Permits are updated. Additionally, since the Northern Long-Eared Bat (NLEB) has been up-listed to endangered by the U.S. Fish and Wildlife Service (USFWS), seasonal restrictions and avoidance measures will be enacted to replace the 4(d) Rule.

E-Permitting Gets More Efficient
In 2020, PADEP launched an online permitting system to improve efficiency throughout the environmental permitting process, and e-permitting is available for both Chapter 102 and Chapter 105 permits (except PAG01). Our team has successfully submitted permits through this system and found that permits are typically issued faster than the traditional method. A new eFACTS Counter will soon be available to help track how long each reviewer or team has had the application, and that may further speed up the overall processing time. Our familiarity with the e-permitting platform allows for your projects to be ushered quickly through the permitting process and move through the pre-construction phase process on time.

Avoid Permitting Headaches with Fisher on Your Side
The updates to Chapters 102 and 105 underscore the ever-changing nature of the regulatory environment in Pennsylvania — and they highlight that to keep your projects on-schedule, you need an experienced advisor that constantly stays abreast of the latest developments and knows the regulations, the permit contacts, and the procedures to follow for issuance of the required permits.
Whether it’s working with municipalities for site plan approval; crossing or encroaching on wetlands or streams; obtaining a General or Individual Permit for Stormwater Pollution Prevention Plans (SWPPP); preparing Erosion and Sediment Control Plans (ESCP), Post Construction Stormwater Management Plans (PCSM), or Site Restoration Plans; or crossing a road, railroad, bridge, or stream, our environmental team’s ability to methodically work through the permit process is an asset to any project.

Let’s talk about how we can utilize our expertise to assist you in getting your project through the regulatory process. Reach out to Brook Bertig-Coll, Director of Environmental, to learn more.